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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. TORRES
Cite as 300 Neb. 694
State of Nebraska, appellee, v.
M arco E. Torres, Jr., appellant.
___ N.W.2d ___
Filed August 3, 2018. No. S-17-740.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
2. Limitations of Actions. If the facts in a case are undisputed, the issue
as to when the statute of limitations begins to run is a question of law.
3. Postconviction: Limitations of Actions. If, as part of its prelimi-
nary review, the trial court finds the postconviction motion affirma-
tively shows—either on its face or in combination with the files and
records before the court—that it is time barred under Neb. Rev. Stat.
§ 29-3001(4) (Reissue 2016), the court is permitted, but not obliged, to
sua sponte consider and rule upon the timeliness of the motion.
4. Postconviction: Limitations of Actions: Appeal and Error. A district
court has discretion to adopt reasonable procedures for determining
what the postconviction motion and the files and records show, and
whether the defendant has raised any substantial issues, before granting
a full evidentiary hearing. District courts also have discretion to adopt
reasonable procedures for determining whether to rule sua sponte on the
timeliness of a postconviction motion. An appellate court will examine
these procedures for an abuse of discretion, which exists only when the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying a just result in matters
submitted for disposition.
5. Postconviction: Appeal and Error. An appellate court will not con-
sider as an assignment of error a question not presented to the district
court for disposition through a defendant’s motion for postconvic-
tion relief.
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STATE v. TORRES
Cite as 300 Neb. 694
6. Appeal and Error. An appellate court always reserves the right to note
plain error that was not complained of at trial or on appeal.
7. ____. Plain error may be found on appeal when an error, plainly evident
from the record, prejudicially affects a litigant’s substantial right and,
if uncorrected, would result in damage to the integrity, reputation, and
fairness of the judicial process.
Appeal from the District Court for Hall County: James D.
Livingston, Judge. Affirmed.
Jeffery A. Pickens, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith
for appellee.
Brian William Stull, of American Civil Liberties Union
Foundation, and Amy A. Miller, of American Civil Liberties
Union of Nebraska Foundation, for amici curiae American
Civil Liberties Union Capital Punishment Project and American
Civil Liberties Union of Nebraska Foundation.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and H arder and Noakes, District Judges.
Stacy, J.
This is an appeal from the denial of postconviction relief.
The district court, sua sponte, found Marco E. Torres, Jr.’s, suc-
cessive motion for postconviction relief was time barred under
the 1-year limitations period of Neb. Rev. Stat. § 29-3001(4)
(Reissue 2016) and denied relief without conducting an evi-
dentiary hearing. On appeal, Torres argues the procedure used
by the district court was improper. We find no abuse of discre-
tion in the procedure followed, and affirm.
FACTS
In 2009, a jury found Torres guilty of two counts of first
degree murder and other felony offenses. He was sentenced to
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STATE v. TORRES
Cite as 300 Neb. 694
death for each of the murders and sentenced to prison terms
for the other felonies. We affirmed his convictions and sen-
tences on direct appeal.1
Torres moved for postconviction relief in 2013, raising
claims of prosecutorial misconduct and ineffective assist
ance of counsel. After various delays, the district court con-
ducted an evidentiary hearing and then denied postconviction
relief. We affirmed the denial of postconviction relief in
February 2017.2
In June 2017, Torres filed this successive motion for post-
conviction relief. His successive motion alleges two claims,
each premised on a U.S. Supreme Court case. Specifically,
Torres alleges his death sentences are unconstitutional under
Hurst v. Florida 3 and Johnson v. U.S.4 He alleges that Hurst
and Johnson both announced newly recognized constitutional
claims and that both should be applied retroactively to cases
on collateral review.
The district court did not reach the merits of either of the
claims alleged in Torres’ successive motion because it deter-
mined, sua sponte, the motion was time barred under the 1-year
limitations period in § 29-3001(4). Section 29-3001(4) applies
to successive postconviction motions5 and provides:
(4) A one-year period of limitation shall apply to the
filing of a verified motion for postconviction relief. The
one-year limitation period shall run from the later of:
1
State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).
2
State v. Torres, 295 Neb. 830, 894 N.W.2d 191 (2017).
3
Hurst v. Florida, ___ U.S. ___, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016)
(holding Florida’s capital sentencing scheme unconstitutional because
judge, not jury, made critical findings needed for imposition of death
sentence).
4
Johnson v. U.S., ___ U.S. ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015)
(holding “violent felony” enhancer in Armed Career Criminal Act of 1984
unconstitutionally vague).
5
See State v. Amaya, 298 Neb. 70, 902 N.W.2d 675 (2017).
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STATE v. TORRES
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(a) The date the judgment of conviction became final
by the conclusion of a direct appeal or the expiration of
the time for filing a direct appeal;
(b) The date on which the factual predicate of the
constitutional claim or claims alleged could have been
discovered through the exercise of due diligence;
(c) The date on which an impediment created by state
action, in violation of the Constitution of the United
States or the Constitution of Nebraska or any law of this
state, is removed, if the prisoner was prevented from fil-
ing a verified motion by such state action;
(d) The date on which a constitutional claim asserted
was initially recognized by the Supreme Court of the
United States or the Nebraska Supreme Court, if the
newly recognized right has been made applicable retro-
actively to cases on postconviction collateral review; or
(e) August 27, 2011.
In its order, the district court found Torres’ successive
motion was time barred under § 29-3001(4)(d). The court
reasoned that Torres’ claims were based exclusively on Hurst
(decided in January 2016) and Johnson (decided in June 2015),
and both cases had been decided more than 1 year before the
date Torres filed his successive postconviction motion. The
court did not expressly rule on the applicability of the other
subsections of § 29-3001(4).
After concluding the successive motion was time barred
under § 29-3001(4)(d), the court denied postconviction relief
and overruled Torres’ motion for appointment of counsel.
Torres timely appealed. He filed a motion for appointment of
counsel on appeal, which this court granted.
ASSIGNMENTS OF ERROR
Torres assigns, restated and consolidated, that the district
court erred in (1) failing to hold a records hearing or certify
the record pursuant to State v. Glover,6 (2) determining sua
6
State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008).
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STATE v. TORRES
Cite as 300 Neb. 694
sponte that his successive motion was barred by the 1-year
limitations period without giving Torres notice and an oppor-
tunity to be heard, and (3) determining his successive motion
failed to allege sufficient facts to support claims under Hurst
and Johnson.
Torres also assigns that this court committed plain error
when it determined, in an earlier opinion resolving his direct
appeal, that Torres’ convictions for kidnapping, robbery, and
two weapons charges satisfied the first prong of the aggravator
in Neb. Rev. Stat. § 29-2523(1)(a) (Reissue 2008).7
STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of
his or her constitutional rights or that the record and files
affirmatively show that the defendant is entitled to no relief.8
[2] If the facts in a case are undisputed, the issue as to
when the statute of limitations begins to run is a question
of law.9
ANALYSIS
As a threshold matter, we observe that Torres does not
assign error to the district court’s finding that his successive
motion is time barred under § 29-3001(4)(d). Nor does Torres
argue that his successive motion is actually timely under any
of the subsections in § 29-3001(4). Instead, he primarily chal-
lenges the procedure followed by the district court when it
reviewed and dismissed sua sponte his successive postconvic-
tion motion.
Before we address his procedural arguments, our de novo
standard of review requires that we determine whether the files
and records affirmatively show Torres is entitled to no relief
7
See Torres, supra note 1.
8
State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).
9
State v. Epp, 299 Neb. 703, 910 N.W.2d 91 (2018).
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STATE v. TORRES
Cite as 300 Neb. 694
on his successive postconviction motion.10 That necessarily
requires us to determine whether the district court correctly
concluded his successive motion is time barred.11
Motion Is Time Barred
The Nebraska Postconviction Act contains a 1-year time
limit for filing verified motions.12 Generally speaking, that
1-year period runs from one of four triggering events or from
August 27, 2011, whichever is later.13 Summarized, those trig-
gering events are: (a) the date the judgment of conviction
became final,14 (b) the date the factual predicate of the alleged
constitutional claim could have been discovered through due
diligence,15 (c) the date an impediment created by state action
was removed,16 or (d) the date on which a new constitutional
claim was recognized by either the Supreme Court of the
United States or the Nebraska Supreme Court.17
In State in Harrison,18 we looked to the allegations of the
verified postconviction motion and the files and records of the
case to determine which of the triggering events applied to our
determination of timeliness under § 29-3001(4). We follow
the same procedure here, and conclude none of the triggering
events apply to make Torres’ successive motion timely.
Torres’ convictions became final on February 3, 2012,19 and
he filed his successive motion on June 14, 2017. His succes-
sive motion is not timely under § 29-3001(4)(a), because it was
10
See Johnson, supra note 8.
11
See State v. Harrison, 293 Neb. 1000, 881 N.W.2d 860 (2016).
12
See § 29-3001(4).
13
See Harrison, supra note 11 (citing § 29-3001(4)).
14
§ 29-3001(4)(a).
15
§ 29-3001(4)(b).
16
§ 29-3001(4)(c).
17
§ 29-3001(4)(d).
18
Harrison, supra note 11.
19
See Torres, supra note 1.
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STATE v. TORRES
Cite as 300 Neb. 694
filed more than 1 year after his conviction became final. His
successive motion is not timely under § 29-3001(4)(b), because
the factual predicates for the claims he asserts occurred during
his trial and are found in the trial record. The triggering event
in § 29-3001(4)(c) does not apply, because Torres has not
alleged any facts suggesting the State created an impediment
that prevented him from filing his postconviction motion.20
Torres’ successive motion is not timely under § 29-3001(4)(d),
because he filed his motion more than 1 year after the release
of the opinions in Hurst and Johnson—the U.S. Supreme Court
cases that Torres contends announced a “newly recognized
right.” And finally, Torres’ successive motion is not timely
under § 29-3001(4)(e), because it was filed more than 1 year
after the default date of August 27, 2011.
We thus conclude on de novo review that the verified
motion and the files and records affirmatively show that Torres’
successive postconviction motion is barred by the 1-year limi-
tations period of § 29-3001(4). Having concluded the district
court was correct that the successive motion is time barred,
we proceed to address Torres’ arguments that the district court
erred in the procedure it followed.
Identification of Files and
R ecords Was A dequate
Torres argues the district court violated State v. Glover,21
because it did not hold a records hearing or otherwise identify
the files and records on which it relied in denying postconvic-
tion relief without an evidentiary hearing. He asks that we
reverse the order and remand the matter with directions to
comply with Glover.
In Glover, the defendant filed a motion for postconviction
relief alleging ineffective assistance of counsel. The State filed
a motion asking the court to deny relief without conducting an
20
See, Amaya, supra note 5; Harrison, supra note 11.
21
Glover, supra note 6.
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STATE v. TORRES
Cite as 300 Neb. 694
evidentiary hearing. The postconviction court held a hearing on
the State’s motion. At that hearing, it received a copy of trial
counsel’s deposition which had been taken after the postcon-
viction motion was filed. The court then relied on the deposi-
tion to conclude the files and records affirmatively showed the
defendant was not entitled to relief.
The defendant in Glover appealed, and we disapproved of
the procedure used by the district court. We explained that the
“files and records of the case”22 upon which a postconviction
court should rely in denying an evidentiary hearing are the files
and records existing before the postconviction motion is filed.23
We recognized that a district court has discretion to adopt rea-
sonable procedures for determining which files and records
to review, but we stated that if the relevant case records and
files are not received at a formal “records” hearing, the court
should certify and include in the transcript the files and records
it considered in denying relief.24 We have since explained that
the “obvious” reason for the Glover procedure is to facilitate
appellate review.25
Torres argues the district court erred because it did not hold
a formal records hearing or certify the files and records it con-
sidered in denying postconviction relief. We find no error in
the procedure followed here.
The district court’s order made express findings regard-
ing the history of Torres’ case and based those findings on
its “review of the files and records” in this case. The court’s
order made specific findings regarding: (1) the date of Torres’
convictions, (2) the date his direct appeal became final, (3) the
date he filed his prior postconviction motion and the date on
which the denial of that motion was affirmed by this court, (4)
the date he filed his successive postconviction motion, and (5)
22
§ 29-3001(2).
23
Glover, supra note 6, 276 Neb. at 628, 756 N.W.2d at 162.
24
Id.
25
State v. Lee, 282 Neb. 652, 665, 807 N.W.2d 96, 107 (2011).
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STATE v. TORRES
Cite as 300 Neb. 694
the dates both Hurst and Johnson were decided by the U.S.
Supreme Court.
It was plainly evident from the court’s order which files and
records it relied upon, and all such records existed before the
successive motion was filed and are contained in the transcript.
We find no merit to Torres’ first assignment of error, and there
is no need to remand this matter for a formal records hearing
under Glover.
Sua Sponte Consideration of
Statute of Limitations
Next, Torres argues the sua sponte procedure utilized by
the postconviction court did not afford him sufficient notice
or opportunity to be heard on the question of whether his
successive postconviction motion was time barred. He asks
us to either overrule or modify our recent decision in State v.
Amaya,26 which expressly authorized such sua sponte review.
In Amaya, we held a postconviction court could, but was
not required to, raise the statute of limitations issue sua sponte
as part of its preliminary review under § 29-3001(2).27 The
successive postconviction motion at issue in Amaya expressly
acknowledged the 1-year limitations period of § 29-3001(4),
but affirmatively alleged it was “not time barred”28 for two
reasons: (1) because the limitations period could not be ret-
roactively applied to the inmate and (2) because an impedi-
ment created by state action prevented the inmate from filing
sooner.29 The district court found no merit to either allegation,
and denied relief without an evidentiary hearing after finding
the motion was time barred.
[3] On appeal, we affirmed the procedure followed by the
district court. We acknowledged our prior holding that the
26
Amaya, supra note 5.
27
Id.
28
Id. at 72, 902 N.W.2d at 678.
29
Amaya, supra note 5. See § 29-3001(4)(c).
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STATE v. TORRES
Cite as 300 Neb. 694
statute of limitations under § 29-3001(4) is an affirmative
defense and not a jurisdictional requirement,30 so a district
court is under no obligation to raise a time bar sua sponte. But
we held that a postconviction court is permitted to raise a time
bar as part of its preliminary review, and we announced the
following rule:
[I]f, as part of its preliminary review, the trial court finds
the postconviction motion affirmatively shows—either on
its face or in combination with the files and records before
the court—that it is time barred under § 29-3001(4), the
court is permitted, but not obliged, to sua sponte consider
and rule upon the timeliness of the motion.31
Torres notes that in Amaya, this court found “‘instructive’”32
the U.S. Supreme Court’s reasoning in Day v. McDonough.33
And although Torres concedes that the federal procedural
requirements imposed in Day are not binding in Nebraska
postconviction proceedings, he nevertheless urges us to adopt
that procedure.
Day involved a federal petition for a writ of habeas corpus.
The government’s answer had admitted the petition was timely
filed, but several months later, the federal court found a math-
ematical error and concluded the petition was untimely. The
court then dismissed the petition as time barred.
The issue in Day was whether the court could raise the
statute of limitations issue sua sponte after the government
had answered the petition. Notably, the parties and the Court
generally conceded that the district court could have sua
sponte raised the issue of timeliness during its preliminary,
pre-answer review.34 The parties disputed only whether the
30
State v. Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015).
31
Amaya, supra note 5, 298 Neb. at 77, 902 N.W.2d at 681. See § 29-3001(2).
32
Brief for appellant at 17.
33
Day v. McDonough, 547 U.S. 198, 126 S. Ct. 1675, 164 L. Ed. 2d 376
(2006).
34
Id.
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court lost that authority once the government had answered the
petition and admitted timeliness.
The statute of limitations for federal habeas cases is simi-
lar to the statute of limitations in § 29-3001(4).35 And like
§ 29-3001(4), the federal habeas limitations period is con-
sidered a nonjurisdictional, affirmative defense that can be
waived by the government.36 The U.S. Supreme Court in Day
suggested it would generally be an abuse of discretion for a
trial court to override a State’s deliberate waiver of the limita-
tions defense, but it nevertheless concluded the government’s
mathematical error had not amounted to a deliberate waiver.
Day ultimately held that “district courts are permitted, but
not obliged, to consider, sua sponte, the timeliness of a state
prisoner’s habeas petition.”37 The Court reasoned that it made
“scant sense” to distinguish the statutory time bar from other
“threshold constraints” federal district courts are routinely
permitted to address sua sponte in habeas actions, includ-
ing failure to exhaust state remedies, procedural bars, and
nonretroactivity.38
Torres emphasizes that while Day permitted sua sponte
consideration of limitations issues, it also imposed a specific
procedure on federal courts undertaking such consideration:
[B]efore acting on its own initiative, a court must accord
the parties fair notice and an opportunity to present
their positions. . . . Further, the court must assure itself
that the petitioner is not significantly prejudiced by the
delayed focus on the limitation issue, and “determine
whether the interests of justice would be better served”
by addressing the merits or by dismissing the petition as
time barred.39
35
Compare § 29-3001(4), with 28 U.S.C. § 2244(d)(1) (2012).
36
Day, supra note 33.
37
Id., 547 U.S. at 209.
38
Id.
39
Id., 547 U.S. at 210 (citations omitted).
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STATE v. TORRES
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Torres urges us to either overrule Amaya altogether and pre-
clude district courts from raising timeliness sua sponte, or
modify Amaya by requiring district courts to follow the federal
habeas procedure set out in Day. We decline both invitations.
In Amaya, we recognized that the plain language of
§ 29-3001 both authorizes and requires a district court to
conduct a preliminary review of a postconviction motion to
determine whether “‘the files and records of the case show to
the satisfaction of the court that the prisoner is entitled to no
relief.’”40 And we adhere to our holding that if, as part of its
preliminary review, the district court finds the postconviction
motion affirmatively shows—either on its face or in combi-
nation with the files and records before the court—that it is
time barred under § 29-3001(4), the court is permitted, but not
obliged, to sua sponte consider and rule upon the timeliness of
the motion.41
In connection with such review, we are not persuaded it is
necessary to endorse or require any particular procedure for a
district court to follow. Instead, we leave such procedural mat-
ters to the discretion of the district court.
[4] We have long recognized that a district court has dis-
cretion to adopt reasonable procedures for determining what
the postconviction motion and the files and records show,
and whether the defendant has raised any substantial issues,
before granting a full evidentiary hearing.42 District courts also
have discretion to adopt reasonable procedures for determining
whether to rule sua sponte on the timeliness of a postconvic-
tion motion, and that necessarily includes discretion to provide
the parties an opportunity to present their positions before
acting sua sponte to dismiss a postconviction motion as time
40
Amaya, supra note 5, 298 Neb. at 76, 902 N.W.2d at 680 (quoting
§ 29-3001(2)).
41
Amaya, supra note 5.
42
See, e.g., Lee, supra note 25; Glover, supra note 6; State v. Bazer, 276
Neb. 7, 751 N.W.2d 619 (2008); State v. McLeod, 274 Neb. 566, 741
N.W.2d 664 (2007); State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).
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barred. An appellate court will examine such procedures for
an abuse of discretion, which exists only when the reasons or
rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying a just result in mat-
ters submitted for disposition.43
We find no abuse of discretion in the procedure followed
by the district court in this case. Torres presents no argument
that his successive motion was timely filed under any sub-
section of § 29-3001(4), and he points to nothing he might
have argued or offered, if provided such an opportunity, that
would have changed the court’s conclusion his claim was time
barred. Under these circumstances, we cannot find the proce-
dure followed by the district court unfairly deprived Torres of
a substantial right or a just result, and thus we find no abuse
of discretion.
District Court Did Not R each
Merits of Torres’ Claims Under
Hurst and Johnson
Torres assigns that the district court erred in finding his suc-
cessive motion failed to allege sufficient factual allegations to
support his postconviction claims under Hurst and Johnson.
This assignment misconstrues the nature of the dismissal in
this case.
The postconviction court did not rule on the merits of Torres’
postconviction claims under Hurst and Johnson, because it
never reached the merits. Instead, the court dismissed the suc-
cessive postconviction motion as time barred. Because of this,
the district court did not address the sufficiency of the factual
allegations under Hurst and Johnson, and this assignment of
error lacks merit.
Plain Error
In Torres’ final assignment of error, he asserts this court
committed plain error when it determined, in his direct appeal,
43
Lee, supra note 25.
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that his convictions for kidnapping, robbery, and weapons
charges satisfied the first prong of the aggravator under
§ 29-2523(1)(a).44 He asks this court to recognize the plain
error and remand the matter for resentencing.
[5] The State argues, correctly, that Torres did not allege
this claim in his successive motion for postconviction relief.
We have held that an appellate court will not consider as an
assignment of error a question not presented to the district
court for disposition through a defendant’s motion for post-
conviction relief.45 We adhere to this proposition of law and
express no opinion on how Torres might properly present such
a claim.
[6,7] And although an appellate court always reserves the
right to note plain error that was not complained of at trial or
on appeal,46 we decline to exercise that right in this instance.
Plain error may be found on appeal when an error, plainly
evident from the record, prejudicially affects a litigant’s sub-
stantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process.47 But
the error about which Torres complains was dicta expressed in
an alternative holding, and thus could not prejudicially affect
his substantial right or result in damage to the integrity, repu-
tation, and fairness of the judicial process.48
CONCLUSION
For the foregoing reasons, we affirm the district court’s
order dismissing Torres’ successive postconviction motion as
time barred.
A ffirmed.
44
See Torres, supra note 1.
45
State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015); State v. Haas, 279
Neb. 812, 782 N.W.2d 584 (2010).
46
State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).
47
Id.
48
See id.